United States v. Juan Sosa , 686 F. App'x 244 ( 2017 )

Case: 15-41729 Document: 00513955240 Page: 1 Date Filed: 04/17/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-41729 FILED
Summary Calendar April 17, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA,
Clerk
Plaintiff - Appellee
v.
JUAN MANUEL SOSA,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:11-CR-869-1
Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Juan Manuel Sosa, federal prisoner # 00054-379, appeals the denial of
his 18 U.S.C. § 3582(c)(2) motion for a reduction of his sentence for possession,
with intent to distribute, a controlled substance. Sosa contends: he was
eligible for a reduction; and the court abused its discretion by denying relief.
Sosa pleaded guilty to possession of more than 100 kilograms of
marijuana, with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(B), and 18 U.S.C. § 2. In early 2012, he was sentenced under the then-
applicable 2011 advisory Sentencing Guidelines to 108-months’ imprisonment.
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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No. 15-41729
In 2015, he moved for the court to reduce his sentence, citing Amendment 782
to the Guidelines. The district court denied his motion, concluding his sentence
“was and is appropriate under 18 U.S.C. § 3553(a) especially given [Sosa]’s
extensive involvement in this drug distribution scheme”.
A district court’s decision to deny a sentence reduction under 18 U.S.C.
§ 3582(c)(2) is reviewed for an abuse of discretion, “its interpretation of the
Guidelines de novo, and its findings of fact for clear error”. United States v.
Henderson, 636 F.3d 713, 717 (5th Cir. 2011) (internal quotation marks and
citation omitted). In considering a § 3582(c)(2) motion, the court first
determines whether movant is eligible for a sentence reduction and then
whether a reduction “is warranted in whole or in part under the particular
circumstances of the case”. Dillon v. United States, 560 U.S. 817, 827 (2010).
Sosa primarily contends denying relief based on his “extensive
involvement in this drug distribution scheme” was an abuse of discretion, given
both the finding at sentencing that he did not have an aggravating role in the
offense and the lack of evidence showing he participated in a prior transfer of
marijuana in Atlanta, Georgia. According to the presentence investigation
report (PSR), Sosa’s role in the offense included renting a box truck, retrieving
drugs from a stash house, and delivering the truck to a warehouse in
Brownsville, Texas. One of his co-defendants told authorities Sosa was
involved in a similar transaction in Atlanta. Although Sosa objected to the
recitation in the PSR concerning his involvement in the Atlanta transfer, he
later withdrew his objection. At sentencing, the court adopted the PSR and
found Sosa participated in the Atlanta transfer and that, while he did not have
an aggravating role in the offense, his “degree of involvement was significant”.
Sosa did not file a direct appeal challenging these findings, and a
§ 3582(c)(2) proceeding is not the appropriate vehicle for re-litigating
sentencing issues. See United States v. Hernandez, 645 F.3d 709, 712 (5th Cir.
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No. 15-41729
2011). Moreover, the finding that Sosa did not have an aggravating role was
based on a lack of evidence that he had supervisory or decision-making
authority. Sosa does not explain why this precluded the court’s finding he had
“extensive involvement in this drug distribution scheme”, which is plausible in
the light of the record as a whole. See United States v. Cisneros-Gutierrez, 517
F.3d 751, 764 (5th Cir. 2008) (“There is no clear error if the district court’s
finding is plausible in light of the record as a whole.”).
Sosa also asserts the court failed to adequately consider his post-
sentencing conduct, but the relevant Guideline commentary states a “court
may consider post-sentencing conduct”, rather than its being required to do so.
See U.S.S.G. § 1B1.10, cmt. n.1(B)(iii). He also states, without more, that the
court’s ruling fails to comply with the goals of Amendment 782 and “establishes
unwarranted sentencing disparities”. His counseled brief is not entitled to
liberal construction, see Beasley v. McCotter, 798 F.2d 116, 118 (5th Cir. 1986),
and his conclusory assertions are insufficient to show an abuse of discretion.
See United States v. Sparks, 2 F.3d 574, 583 (5th Cir. 1986).
In short, Sosa does not establish the decision was based on an error of
law or a clearly erroneous assessment of the evidence, nor does he show it was
otherwise an abuse of discretion to deny his motion for a sentence reduction.
See Henderson, 636 F.3d at 717; United States v. Heyliger, 407 F. App’x 803,
805 (5th Cir. 2011) (affirming denial of § 3582(c)(2) motion based on criminal
history and seriousness of the offense). The record reflects the court gave due
consideration to Sosa’s motion as a whole and the § 3553(a) factors. See United
States v. Whitebird, 55 F.3d 1007, 1010 (5th Cir. 1995).
AFFIRMED.
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